Rolan v. Atl. Richfield Co.

LERITHEA ROLAN and LAMOTTCA BROOKS, individuallyand on behalf of all others similarly situated, Plaintiffs, v. ATLANTIC RICHFIELD COMPANY,E.I. DU PONT DE NEMOURS AND COMPANY, and THE CHEMOURS COMPANY, Defendants.

CAUSE NO.: 1:16-CV-357-TLS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

July 26, 2017

OPINION AND ORDER

This matter comes before the Court on a Motion to Certify Class [ECF No. 4], filed by Plaintiffs LeRithea Rolan and Lamottca Brooks, individually and on behalf of all others similarly situated, a Motion to Dismiss [ECF No. 39] filed by Defendant Atlantic Richfield Company, and an Amended Motion to Dismiss [ECF No. 45] filed by Defendants E.I. du Pont de Nemours and Company, and the Chemours Company. These matters are briefed and ripe for the Court's review.

COMPLAINT ALLEGATIONS

A. Background

This Complaint [ECF No. 1] involves remediation efforts at the USS Lead Superfund Site in East Chicago, Indiana, and the effect of those efforts on local residents. Plaintiff LeRithea Rolan is an Indiana citizen who has resided within the West Calumet Public Housing Complex (West Calumet) in East Chicago since April 2008. (Compl. ¶ 2, ECF No. 1.) She has one child who lives with her. (Id.) Plaintiff Lamottca Brooks is also an Indiana citizen who has lived within West Calumet since September 2012. (Id. ¶ 3.) She has six children who live with her. (Id.) The West Calumet Public Housing Complex is owned and operated by the East Chicago Housing Authority (ECHA). (Id. ¶¶ 1, 13.)

"Defendant Atlantic Richfield Company is a corporation organized under the laws of the State of Delaware with its principal place of business in California." (Id. ¶ 4.)¹ The Plaintiffs allege that Defendant Atlantic Richfield "owned and operated white lead and zinc oxide manufacturing and metal refining facilities at 151st and McCook Avenue in East Chicago, . . . which includes West Calumet." (Id. ¶ 10.) Specifically, Defendant Atlantic Richfield's operations "include[d] a pulverizing mill, white lead storage area, a chemical laboratory, a machine shop, a zinc oxide experimental unit building and plant, a silver refinery and a zinc refinery," and the Defendant "generated, dumped, spilled, or otherwise released lead and arsenic into" an area that includes the Plaintiffs' residences. (Id.)

Defendants E.I. du Pont de Nemours and Company, and the Chemours Company, are corporations organized under the laws of, and with their principal places of business in, the State of Delaware. (Id. ¶¶ 5-6.)² "DuPont owns, and for many years owned and operated a pesticide lead arsenate production facility at 5215 Kennedy Avenue in East Chicago, which is in close proximity to" West Calumet. (Id. ¶ 11.) "At and from its facility, DuPont generated, dumped, spilled, or otherwise released lead and arsenic onto its property and into" an area that includes the Plaintiffs' residences. (Id.) The Plaintiffs allege that they have "unwittingly been exposed todangerous levels of lead and arsenic released from [the Defendants' facilities] through ingestion, inhalation and dermal exposure." (Id. ¶ 12.)

B. Remediation Efforts in 2016

Starting in December 2014 and continuing into 2015, the United States Environmental Protection Agency (EPA) sampled soil for lead³ and arsenic⁴ in the front and backyards of all West Calumet residences. (Id. ¶ 14.) "In July 2016, the EPA informed Plaintiffs . . . that it found dangerously high levels of lead and arsenic in the soil at their homes." (Id.) The Plaintiffs allege that these notifications from the EPA in July 2016 "were the first time that [they] . . . knew, or should have known, of the dangerous levels of lead and arsenic in" West Calumet. (Id. ¶ 20.)

After notifying the Plaintiffs and others in July 2016, EPA officials told West Calumet residents "to keep their windows closed and keep children inside at all times." (Id. ¶ 17.) Specifically, a July 2016 flyer addressed to West Calumet residents advised the Plaintiffs "to prevent children from playing in dirt or mulch, to wash their children's toys regularly, and to wash children's hands after they play outside. All residents should remove shoes before walking into their homes" as well as avoid "disturb[ing] the mulch or dig or garden in their yards." (Id. ¶ 17, Ex. 4.) Furthermore, the EPA advised that "West Calumet residents may have their children's blood lead levels tested by calling the East Chicago Health Department." (Id.)

As a result of these notices, the Plaintiffs and their children were "stuck inside their homes," "scrambled and expended resources to find alternative temporary housing when possible," and would only "return[] to their homes . . . when absolutely necessary." (Id. ¶ 18.) Additionally, the Mayor of East Chicago sent letters to the Plaintiffs and other West Calumet residents in July 2016, "telling them to abandon their homes for their own safety," noting that it was in "[their] best interest to relocate [their] households to safer conditions." (Id. ¶ 19, Ex. 5.) Also at that time, the ECHA informed the Plaintiffs and other West Calumet residents that it desired "to demolish [the] 346 units located at the West Calumet Housing Complex." (Id. ¶ 21, Ex. 6.) Governmental officials would later "inform[] Plaintiffs . . . that all West Calumet residents must vacate their homes on or before November 30, 2016." (Id.) Finally, "in August 2016, authorities closed the Carrie Gosch Elementary School," which serves West Calumet. (Id.)

The Plaintiffs allege that the Defendants' "releases [of hazardous substances] have disrupted, and continue to disrupt, the[ir] lives . . . on a daily basis, causing considerable stress, aggravation, annoyance, inconvenience and discomfort." (Id. ¶ 22.) They "have also expended time and money to respond to the releases of lead and arsenic, including, but not limited to, investigating the nature of release and making arrangements for alternative temporary housing and relocations." (Id.) And the "lead and arsenic from Defendants has threatened the health of Plaintiffs [and] their children," and "exposes them to injury and the fear of future injury, including increased cancer rate and irreversible health impacts." (Id. ¶ 23.)

C. Procedural Background

The Plaintiffs filed this Complaint and a Motion to Certify Class on October 6, 2016. In their Complaint, the Plaintiffs assert three claims against both Defendants. Count I is a claimunder the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 (CERCLA). (Id. ¶¶ 33-41.) Under Count I, the Plaintiffs allege that they have

incurred and continue to incur "response" costs within the meaning of . . . CERCLA, 42 U.S.C. §§ 9601(23)-(25), including, but not limited to, preliminary investigations of the contamination of Plaintiffs' . . . properties, and temporary housing and relocation costs. All such costs are necessary costs of response, and, to the extent required, consistent with the National Contingency Plan. Plaintiffs . . . will continue to incur such response costs in the future. Plaintiffs . . . are entitled to full reimbursement from Defendants for all such costs.

(Compl. ¶ 41.) In Count II, the Plaintiffs assert a claim under Indiana law for nuisance, and in Count III they assert a claim under Indiana law for negligence. With regard to their Motion to Certify Class, the Plaintiffs' proposed class consists of:

All persons who currently, or, since being told in July 2016 by EPA of the lead and arsenic levels in their neighborhood, reside(d), on property that has been impacted, or a threat exists that it will be impacted, by lead and arsenic from Defendants' properties in and adjacent to the Class Area.

The Class Area is defined generally as bordered: (1) on the north by the northern boundary of the Carrie Gosch Elementary School and a line extending eastward from that boundary to the eastern edge of a north/south utility right of way that runs parallel to McCook Avenue north of East 149th Place; (2) on the east by: (i) the eastern-most edge of a north/south utility right of way that runs parallel to McCook Avenue until East 149th Place, and (ii) McCook Avenue between East 149th Place and 151st Street; (3) on the south by East 151st Street; and (4) on the west by the Indiana Harbor Canal.

(Mot. Certify 1-2, ECF No. 4.)

Defendant Atlantic Richfield filed its Motion to Dismiss for Failure to State a Claim on January 9, 2017, as well as a Memorandum in Support [ECF No. 40] and Motion for Judicial Notice [ECF No. 41]. Defendant DuPont filed its Amended Motion to Dismiss on January 10, 2017, and a Memorandum in Support [ECF No. 43] and Motion for Judicial Notice [ECF No. 44] on January 9, 2017. The Plaintiffs filed their Consolidated Memorandum in Opposition to Defendants' Motions to Dismiss [ECF No. 49] on February 23, 2017. Then on March 16,2017, Defendant DuPont filed its Reply [ECF No. 51] and a Supplement to its Motion for Judicial Notice [ECF No. 52]. On that same date, Atlantic Richfield also filed its Reply [ECF No. 53]. This case was reassigned to the undersigned on May 1, 2017. [See ECF No. 55.]

STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A court presumes all well-pleaded allegations to be true, views them in the light most favorable to the plaintiffs, and accepts as true all reasonable inferences to be drawn from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995).

The Supreme Court has articulated the following standard regarding factual allegations that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic

...